Filed 10/17/22 Conservatorship of V.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B318934
of V.M. (Super. Ct. No. 21PR-0304)
(San Luis Obispo County)
PUBLIC GUARDIAN OF THE
COUNTY OF SAN LUIS
OBISPO,
Petitioner and Respondent,
v.
V.M.,
Objector and Appellant.
V.M. appeals from a judgment appointing respondent as
conservator of her person for a one-year period. The judgment
was entered following a jury trial. The jury unanimously found
that appellant is “presently gravely disabled due to a mental
disorder.” At the time of trial, appellant was a 22-year-old
woman.
Appellant contends the trial court abused its discretion in
admitting her medical records and in allowing respondent’s
expert witness to refer to the records. The records were admitted
pursuant to the business records and admission exceptions to the
hearsay rule. (Evid. Code, §§ 1271, 1220.)1 In addition, appellant
claims she was denied her right to cross-examine doctors who did
not testify but whose opinions were relied on by respondent’s
expert. We affirm.
Pretrial Hearing
At a pretrial hearing appellant objected to the admission of
her medical records (“the records”) from three facilities: Stanford
Health Care (Stanford), San Luis Obispo County Psychiatric
Health Facility (SLO County PHF), and Aurora Vista Del Mar.
Appellant’s counsel said: “I object to them being admitted, as
they do state the admissions of [appellant] in this matter.”
Respondent’s expert, Dr. Rose Drago, “can use them as part of
her opinion, but she cannot bring them into evidence” because
they contain hearsay and appellant did “not have an opportunity
to cross-examine the people who made the [out-of-court]
statements.” Counsel’s objection was based on People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). Counsel conceded the records
are relevant evidence.
Respondent argued that the records are admissible “under
the business records exception to the hearsay rule.” (§ 1271.)
Respondent said the records had been redacted “[s]o what’s
1 All undesignated statutory references are to the Evidence
Code.
2
remaining should be statements that are attributed to
[appellant], herself.”
The trial court overruled appellant’s objection for the
following reasons: “Number one, there’s at least one hearsay
exception that applies in this case pursuant to Evidence Code
[s]ection 1271 [the business records exception]. Based on my
review of the records, it is evident to me that the writings were
made in the regular course of business. [¶] Number two, . . . the
writings were made at or near the time of the act, condition, or
event. [¶] Number three, . . . the declarations of the custodians
of records have sufficiently identified the record and the mode of
their preparation. [¶] And . . . the records . . . appear to be
trustworthy. They’re not fabricated. . . . [¶] . . . [M]any of the
statements in the records are statements made by [appellant],
herself, so they come in under [the hearsay exception for] a
party[’s] admission [(§ 1220)].”2
Evidence Presented at Trial
The trial occurred in February 2022. At that time,
appellant was living at the Crestwood Champion Healing Center
(Crestwood), a secured facility in Lompoc. She had been there
since October 2021.
Dr. Drago’s Testimony
Dr. Drago, a psychiatrist, was called by respondent as an
expert witness. In preparation for her testimony, she reviewed
the records, the conservatorship investigative report, and
“doctors’ declarations from [appellant’s] facility.” Two weeks
before the trial, she interviewed appellant via Zoom.
2Section 1220 provides: “Evidence of a statement is not
made inadmissible by the hearsay rule when offered against the
declarant in an action to which he is a party . . . .”
3
Dr. Drago diagnosed appellant as having a “schizoaffective
disorder, bipolar type.” This is “a hybrid of schizophrenia and
manic depressive illness.”
During the interview, appellant did not exhibit symptoms
of her disorder: “She’s in a good place [Crestview] right now.
She’s stable on her medications, seemingly. So her mood was
stable, and there . . . was no overt evidence of psychosis during
the interview.”
Dr. Drago read two notes from the records. One note from
April 2021 said, “‘Patient [appellant] stated that she had hit a
guy on the street because she felt threatened but could not state
why she felt threatened. And patient has not been taking her
meds . . . .’” The other note from May 2021 said, “[Appellant]
states that, . . . ‘The voice inside her head,’ . . . has been . . .
‘louder’ . . . recently . . . to the point where she cannot hear her
own thoughts.” Dr. Drago opined that this “is an example of an
auditory hallucination.”
In response to a question whether appellant “is
. . . compliant with her prescribed psychiatric medications,” Dr.
Drago responded: “In a facility such as Crestwood, which is a
locked structured facility, yes, she is compliant. As an
outpatient, she historically has not been compliant with
medication.” Appellant told Dr. Drago that she did not have “a
mental illness” and “would stop her medication . . . if she were on
her own.”
Dr. Drago opined that, if appellant stopped taking her
medications, she would be “gravely disabled.” Notes from a
medical facility indicated that, without her medications, “[s]he
has hallucinations, usually hearing things, and becomes
delusional, feeling a threat from others sometimes.”
4
Dr. Drago further opined, “[W]ithout treatment in a
structured setting right now, she would be disorganized in her
thinking, probably hallucinating, probably paranoid and suicidal,
and not able to even come close to providing for her needs. She’d
be vulnerable. She’d be in a homeless community where she’s
been before, and it would not be a safe situation for her.”
Dr. Drago noted that appellant had attempted suicide on
three occasions. The first hospitalization occurred in 2017 “after
a suicide gesture of laying on the railroad tracks.” “She . . . had
two serious suicide attempts in 2021 that both led to
hospitalization and serious injuries.” During the second attempt,
which occurred in September 2021, appellant drank bleach.
Appellant “tends to minimize” the suicide attempts.
Appellant’s Testimony
Appellant testified: Her plans for the future are “to live
back at home with my mother and to start working.” She does
not have a mental disorder and does not experience “auditory
hallucinations.” If she were on her own, she would not take her
medications. She was admitted to Stanford Health Care because
she had “jumped from a four-story building.”3 She was “homeless
in 2020 from December until January.”
Closing Argument
During closing argument, respondent’s counsel told the
jury: “[F]rom the records that you will see from three separate
medical facilities, from three separate admissions, . . . and as Dr.
Drago described, [appellant], indeed suffers from symptoms that
are associated with mental illness. You'll receive these medical
3 According to Stanford’s medical records, appellant said
she had “jumped from the 4th story” of a “parking structure,” but
“[a] tree broke her fall.”
5
records in the deliberation room, and I encourage you all to take
the time to review them.”
Respondent’s counsel continued: “You'll see in the exhibits
that [appellant] denies having a mental illness; however, you will
also see in the exhibits that [she] acknowledges hearing noises,
endorses thought broadcasting, has paranoia, and has tangential
thinking. As such, I urge you to find that . . . [she] has a mental
disorder . . . .” “The medical records entered into evidence
will . . . show that she has failed to take her psychiatric
medications in the past . . . .”
The California Supreme Court’s Sanchez Opinion
Appellant argues, “Mental health records and related
testimony were improperly admitted in violation of the Sanchez
rule against admission of case-specific hearsay, and of appellant’s
state and federal rights to cross-examine witnesses.” (Bold and
capitalization omitted.) “Hearsay may be briefly understood as
an out-of-court statement offered for the truth of its content. . . .
Hearsay is generally inadmissible unless it falls under an
exception.” (Sanchez, supra, 63 Cal.4th at p. 674.)
In Sanchez our Supreme Court held: “If an expert testifies
to case-specific out-of-court statements to explain the bases for
his opinion, those statements are necessarily considered by the
jury for their truth, thus rendering them hearsay. Like any other
hearsay evidence, it must be properly admitted through an
applicable hearsay exception.” (Sanchez, supra, 63 Cal.4th at
p. 684, fn. omitted.) “What an expert cannot do is relate as true
case-specific facts asserted in hearsay statements, unless they
are independently proven by competent evidence or are covered
by a hearsay exception.” (Id. at p. 686.) “Case-specific facts are
those relating to the particular events and participants alleged to
6
have been involved in the case being tried.” (Id. at p. 676.)
“Sanchez applies to conservatorship proceedings.”
(Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 448.)
No Abuse of Discretion in Admitting the
Records under the Business Records Exception
Section 1271 states the business records exception to the
hearsay rule: “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule
when offered to prove the act, condition, or event if: [¶] (a) The
writing was made in the regular course of business; [¶] (b) The
writing was made at or near the time of the act, condition, or
event; [¶] (c) The custodian or other qualified witness testifies to
its identity and the mode of its preparation; and [¶] (d) The
sources of information and method and time of preparation were
such as to indicate its trustworthiness.” “These requirements
may be satisfied by affidavit. [Citations.]” (Conservatorship of
S.A., supra, 25 Cal.App.5th at p. 447.)
“The trial court has wide discretion to determine whether
there is a sufficient foundation to qualify evidence as a business
record; we will overturn its decision to admit such records only
upon a clear showing of abuse.” (Conservatorship of S.A., supra,
25 Cal.App.5th at p. 447.)
As to the records from SLO County PHF and Aurora Vista
Del Mar, the trial court did not abuse its discretion. The records
were accompanied by declarations under penalty of perjury from
the custodian of records at each of the medical facilities. The
custodians identified the records and attested that they had been
“prepared by personnel . . . in the ordinary course of business, at
or near the time of the acts, conditions, or events recorded.” The
custodians described the mode of preparation of the records: “The
7
records were prepared by different members of the above-named
patient’s treatment team. The individual author(s) of each
notation had personal knowledge of the act, condition, or event
recorded. Each individual author either directly witnessed the
act, condition or event recorded, OR was provided information by
someone who directly witnessed the act, condition, or event
recorded.” The trial court said, “I have reviewed the records very
carefully . . . [and] they appear to be trustworthy. They’re not
fabricated . . . .”
With one exception, the Stanford custodian’s declaration is
consistent with the declarations of the other custodians. The
exception is the description of the mode of preparation of the
records. The Stanford custodian states, “The mode of preparation
of these records is described as copies of the originals.” Appellant
contends that this statement does not meet the requirement of
the business records exception that the custodian testify to the
“mode of [the record’s] preparation.” (§ 1271, subd. (c).)
We need not determine whether the Stanford custodian
adequately described the mode of preparation of the records. The
face of the Stanford records shows their mode of preparation so
that a detailed description by the custodian was unnecessary.
The Stanford records consist of three notes. The first was
authored by Dr. Filza Hussain and filed on May 5, 2021. It was
based on an original note prepared by Dr. Dany Lamothe and
filed on May 4, 2021, the date appellant was admitted to
Stanford. The second note was authored by Dr. Giovanni
Dandekar and filed on May 17, 2021. It was based on an original
note prepared by Dr. Natalie Ruth Marks and filed on May 14,
2021. The last note was authored by Dr. Yelizaveta Sher and
8
filed on May 19, 2021. It was based on an original note prepared
by Dr. Dany Lamothe and filed on May 14, 2021.
All three notes are heavily redacted so that only records of
appellant’s statements are visible. These records obviously were
prepared by appellant’s treatment team at Stanford based on her
statements to members of the team. Testimony by the Stanford
custodian as to their mode of preparation would merely have
reiterated what was self-evident.
The trial court said it had “reviewed the records very
carefully.” “A trial judge has broad discretion in admitting
business records under Evidence Code section 1271, and it has
been held that the foundation requirements may be inferred from
the circumstances.” (People v. Dorsey (1974) 43 Cal.App.3d 953,
961.)
Appellant maintains that “admission [of the records under]
the business record exception is not proper in this case, because it
. . . abrogates the rights of a person subject to civil commitment
to cross examine witnesses.” But Sanchez makes clear that in a
civil action, such as a conservatorship proceeding, case-specific
hearsay is admissible if it falls within an exception to the hearsay
rule. (Sanchez, supra, 63 Cal.4th at p. 686.) “Drago’s testimony
about the contents of the records did not violate [appellant’s]
constitutional rights because she related only case-specific facts
that were proved by admissible evidence. . . . [T]he case-specific
hearsay related by Drago came from medical records that
qualified for admission under the business records exception to
the hearsay rule.” (Conservatorship of S.A., 25 Cal.App.5th at p.
448.)
Because the records were admissible under the business
records exception, we do not consider respondent’s claim that
9
“Welfare and Institutions Code section 5008.2 operates as an
independent hearsay exception because it requires the trier of
fact to consider the historical course of the individual[’s] illness,
including considering the patient’s medical and psychiatric
records.”4
Appellant Forfeited Claim She Was Denied the
Right to Cross-Examine Doctors Who Did Not Testify
Dr. Drago testified that, when she evaluates a patient, she
considers “what other clinicians have thought.” Respondent
asked Dr. Drago whether she felt “confident in coming to a
diagnosis after reviewing records and having an interview with
an individual.” She responded in the affirmative and gave the
following explanation: “[B]y the time people get to this point,
there’s usually been multiple clinicians that have weighed in . . . .
So it’s not that I’m out in the desert . . . . [W]hen there’s been
several clinicians seeing and saying pretty much the same thing,
it helps a little bit more, too.” Dr Drago had earlier testified,
“[A]s the notes from, I believe it was Stanford, indicate,
[appellant] does become psychotic without medications.”
Based on the above testimony, appellant claims Dr. Drago
relied on the opinions of other doctors “to bolster her diagnosis.”
Appellant argues that she “was denied her state and federal
rights to cross-examination” of these “non-testifying doctors.”
(Bold and capitalization omitted.)
4 Welfare and Institutions Code section 5008.2 provides in
relevant part: “[T]he historical course of the person’s mental
disorder . . . shall be considered when it has a direct bearing on
the determination of whether the person is . . . gravely disabled,
as a result of a mental disorder. The historical course shall
include . . . the patient’s medical records as presented to the
court, including psychiatric records . . . .”
10
As authority for her argument, appellant cites our opinion
in People v. Campos (1995) 32 Cal.App.4th 304, 308 (Campos).
There, the defendant contested a jury’s determination that he
was a mentally disordered offender (MDO). (Pen.Code, § 2960 et
seq.) Dr. Mertz testified “that nontestifying experts who
evaluated [defendant] concurred in her opinion that [he] met the
MDO criteria . . . .” (Campos, supra, at p. 306.) We held: “Doctor
Mertz was properly allowed to testify that she relied upon the
reports in forming her own opinions. The trial court erred,
however, when it allowed her to reveal their content on direct
examination by testifying that each prior medical evaluation
agreed with her own opinion. ‘[D]octors can testify as to the basis
for their opinion [citation], but this is not intended to be a
channel by which testifying doctors can place the opinion of
innumerable out-of-court doctors before the jury.’” (Id. at p. 308.)
Appellant concedes that her “counsel did not expressly
object to” the testimony in question. But she maintains that, “in
light of the trial court’s ruling[] on admission of records, which
were based on appellant’s rights to cross-examine witnesses . . . ,
any such objection would have been futile.”
We disagree. The redacted records contained only
appellant’s statements. They did not include the opinions of
appellant’s doctors concerning her mental condition. It is
therefore not reasonable to conclude that the court would have
overruled a Campos objection to Dr. Drago’s testimony that she
felt confident about her diagnoses because, by the time she gets a
case, “there’s been several clinicians seeing and saying pretty
much the same thing.”
Accordingly, appellant forfeited the issue. “Ordinarily, ‘the
failure to object to the admission of expert testimony or hearsay
11
at trial forfeits an appellate claim that such evidence was
improperly admitted.’ [Citations.] ‘“The reason for the
[objection] requirement is manifest: a specifically grounded
objection to a defined body of evidence serves to prevent error. It
allows the trial judge to consider excluding the evidence or
limiting its admission to avoid possible prejudice. It also allows
the proponent of the evidence to lay additional foundation, modify
the offer of proof, or take other steps designed to minimize the
prospect of reversal.”’” (People v. Perez (2020) 9 Cal.5th 1, 7; see
also People v. Partida (2005) 37 Cal.4th 428, 433-434 [“‘In
accordance with [section 353, subdivision (a)], we have
consistently held that the “defendant's failure to make a timely
and specific objection” on the ground asserted on appeal makes
that ground not cognizable’”].)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
LUI, A.P.J.*
*Administrative Presiding Justice of the Court of Appeal, Second Appellate District,
Division Two, assigned by Chief Justice pursuant to article VI, section 6 of the
California Constitution.
12
Hernaldo J. Baltodano, Judge
Superior Court County of San Luis Obispo
______________________________
Jean Matulis, under appointment by the Court of Appeal,
for Objector and Appellant.
Rita L. Neal, County Counsel, Chelsea K. Kuhns, Deputy,
for Petitioner and Respondent.